OPM Releases New Guidance on When It’s Ok Not to ‘Ban the Box’

In instances where a federal job applicant’s clean criminal history record is essential, agencies are able to request an applicant’s criminal or adverse credit history, according to recent guidance released by the Office of Personnel Management (OPM).

To prevent undue denials of federal job applicants, then-president Barack Obama enacted the “Recruitment, Selection, and Placement (General) and Suitability” rule, otherwise known as “ban the box.” Under this measure, agencies are allowed to request an applicant’s criminal or adverse credit history only after making a conditional offer of employment to the candidate.

The guidance, released Feb. 15, permits agencies to request the information earlier if agencies can establish with OPM job-related reasons why they must request the information earlier, such as if the applicant is seeking a job where “the ability to testify as a witness is a requirement of the position, and thus a clean criminal history record would be essential to the ability to perform one of the duties of the position effectively.”

According to the guidance, agencies looking for an exemption must provide the following information to OPM:

A thorough explanation as to why the agency needs this exception (i.e., describe the specific job-related reasons why your agency needs to evaluate an applicant’s criminal and/or adverse credit history earlier in the process or consider the disqualification of candidates with criminal backgrounds and/or adverse credit history issues)

Indicate at what point in the hiring process the agency currently collects the background information from applicants for these positions, and at what point they would like to collect it

Describe any processes the agency uses, or intends to use, to ensure the information obtained though criminal and/or financial inquiries is accurate, relevant, timely, and complete

Indicate the volume of vacancies and approximate number of applicants who will be affected by this change

Agencies who receive exemptions are not required to submit subsequent exemptions for the position and can rescind the exemption at any time.

Compliance questions can be answered by Michael Gilmore at Michael.Gilmore@opm.gov or (202) 606-2429.